DE 26-IB04 2026-01-16

Can a Delaware public body charge me thousands of dollars in advance for school records held by an outside contractor?

Short answer: Yes, but it has to scope the estimate properly. AG opinion 26-IB04 found that the Delaware Department of Education did NOT violate FOIA by collecting all estimated fees in advance. But the AG recommended a new cost estimate because the records sought (school as-built drawings and capacity files) are likely to contain materials covered by 29 Del. C. § 10002(o)(17), which exempts records that 'could facilitate the planning of a terrorist attack or put Delaware's school children at risk of a mass casualty event.' DDOE was directed to scope its review to exclude exempt materials and provide a new estimate.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

Plain-English summary

Brandy Topolski asked the Delaware Department of Education for school capacity files, as-built floor plans, and related correspondence in ABHA Architects' BIM360 database, going back to FY2017. DDOE responded with a cost estimate of $2,920 from ABHA Architects, covering file-structure review, BIM360 review, Outlook correspondence review, document review, FTP setup, and file transfer. Topolski filed a § 10005 petition arguing the fee was unreasonable, that DDOE was the proper custodian (so the records should be free), that conditioning access on advance payment violated FOIA, and that the estimate included nonrecoverable fees.

The AG split the analysis.

On the basic structure: public bodies CAN require all of the estimated fees in advance under § 10005(m)(5). That part of the petition was rejected.

On records held by a contractor: § 10003(j) lets a public body contract with a third party to retrieve records and assess the requester for the retrieval cost. DDOE's reliance on that section was generally proper.

On the cost estimate itself: the AG flagged a substantive problem. The records Topolski sought are records of school building as-built drawings, capacity worksheets, and floor plans. Those fall within § 10002(o)(17), which exempts records of "buildings operated by the State" whose disclosure "could facilitate the planning of a terrorist attack or put Delaware's school children at risk of a mass casualty event." DDOE acknowledged this in its response. So before producing a cost estimate, DDOE should have scoped its review to exclude records that fall within the exemption. The AG recommended that DDOE produce a new cost estimate, with the scope narrowed to non-exempt records.

That recommendation is significant. A cost estimate that includes review of records the public body cannot release is, in effect, charging the requester to retrieve records the public body must withhold anyway. The AG framed the recommendation in terms of FOIA's general goal of providing reasonable access while complying with statutory exemptions.

What this means for you

If you are requesting school facility or building plans in Delaware

Be aware of § 10002(o)(17). It exempts records that could compromise the security of state-operated buildings or put schoolchildren at risk. As-built drawings, floor plans, and detailed building documents will often fall within the exemption. Your request will likely return high-level capacity figures or aggregated information rather than detailed plans. Consider whether higher-level information would meet your need before requesting the underlying drawings.

If you are a school district FOIA coordinator

Two things to remember. First, before you commission a contractor to retrieve records under § 10003(j), scope the review to exclude records that are categorically exempt. Charging a requester to retrieve records you cannot release is poor practice and (per this AG opinion) requires recasting the cost estimate. Second, you can require advance payment of the full estimated fee under § 10005(m)(5). The cost-estimate process is governed by § 10003(j) when records are with a contractor and by § 10003(m) when retrieval is in-house.

If you advise a public body on school facility records requests

The intersection of § 10003(j) (records with contractors), § 10003(m) (cost estimates), § 10005(m)(5) (advance payment), and § 10002(o)(17) (school building security) is the framework. Use § 10002(o)(17) at the front end to narrow the scope before generating a cost estimate. Document the exempt-records analysis in writing so the requester can see what is being withheld and why.

If you are challenging a Delaware public body's cost estimate

The merits of a cost estimate turn on whether the estimate covers retrieval of records that the public body could and would actually release. If the estimate covers a broad category that includes exempt records, the public body should narrow it before charging the requester. Cite this AG opinion and § 10002(o)(17) when pushing back.

If you are an open-government or transparency advocate

This opinion shows the practical limits on FOIA when records are held by contractors and when records implicate building security. The advance-payment rule under § 10005(m)(5) and the contractor-cost-passthrough under § 10003(j) together can make some FOIA requests prohibitively expensive. The school-building security exemption can take whole categories of records off the table even after payment.

Background and statutory framework

29 Del. C. § 10002(o)(17) is one of the more recent additions to Delaware FOIA's exemption list, designed to protect records that could compromise the security of state-operated buildings, including schools. The statute exempts records that could "facilitate the planning of a terrorist attack or put Delaware's school children at risk of a mass casualty event." School as-built drawings, floor plans, security camera locations, alarm system layouts, and similar building-detail records typically fall within the exemption.

Section 10003(j) is the framework for records held by third parties. When records are not in the public body's direct custody but are accessible through a contractor, the public body can retrieve them and pass through the retrieval cost. The cost estimate must list all retrieval charges expected to be incurred.

Section 10003(m) sets out the general cost-estimate framework for in-house retrieval. The two sections operate independently, and the AG noted that § 10003(m)'s requirements do not necessarily apply to a § 10003(j) cost estimate.

Section 10005(m)(5) is the advance-payment authority. Public bodies can require all or a portion of estimated fees in advance.

The Judicial Watch sworn-affidavit standard applies to the public body's burden of proof, but in this case the AG's analysis turned on the statutory exemption rather than the search adequacy.

Common questions

Why does DDOE charge for records that are essentially in its possession?

Because the records are in ABHA Architects' BIM360 database, which is in the contractor's custody. Under § 10003(j), the public body can pass through the cost of retrieving from a contractor. DDOE represented that doing the search itself would take twice as long and would only access more recent materials.

Is $2,920 a reasonable cost estimate?

The AG did not directly opine on reasonableness. Instead, the AG recommended that DDOE narrow the scope to exclude records covered by § 10002(o)(17), which would naturally reduce the cost. Reasonableness of the new, narrower estimate would be a separate question.

Can DDOE require advance payment?

Yes. Section 10005(m)(5) explicitly authorizes advance payment.

Why does the school-security exemption matter so much?

Because it covers records of state-operated buildings whose disclosure could facilitate harm. Schools are explicitly within the scope. Detailed building drawings are exactly the type of record the exemption was designed to protect. Releasing them publicly creates risks the legislature determined are unacceptable.

What kind of school records are likely releasable under FOIA?

High-level capacity figures, enrollment data, district-wide planning documents, and similar records that do not reveal specific building security vulnerabilities are generally available. Detailed building drawings, floor plans, security system layouts, and similar specifics are exempt.

What if I want building information for a legitimate purpose, like construction?

Architects and contractors working on school projects typically receive building information through the procurement and contracting process, governed by separate state procurement rules and confidentiality agreements, not FOIA. FOIA is not the right tool for that need.

Can I see the cost estimate before paying?

Yes. The cost estimate is part of the FOIA response. You see it before deciding whether to proceed with the request and pay.

What recourse do I have if the new estimate is still too high?

You can file another § 10005 petition challenging the new estimate's reasonableness once it issues. The AG can review whether the estimate complies with § 10003(j)'s requirement to list all retrieval charges expected to be incurred, and whether it appropriately scoped the records review to exclude exempt categories.

Citations

Statutes: 29 Del. C. § 10002(o)(17) (school building security exemption); § 10003(a) (reasonable access); § 10003(j) (third-party retrieval and cost estimates); § 10003(m) (general cost estimate framework); § 10005 (petition process); § 10005(c) (burden of proof); § 10005(m)(5) (advance payment authority).
Cases: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

Source

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL
DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 26-IB04
January 16, 2026

VIA EMAIL
Brandy Topolski
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Education

Dear Ms. Topolski:
We write regarding your correspondence alleging that the Delaware Department of Education violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 of whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we find that a public body may require payment of all fees in advance, and the Department did not violate FOIA in that regard. Regarding the cost estimate, we are recommending that the Department produce a new cost estimate in accordance with the below provisions.

BACKGROUND
You submitted a records request to the Department seeking multiple items, including "all ABHA [Architects] reviewed capacity files, capacity worksheets, revisions, and utilization percentages." In addition, you sought the following:

As required by DOE Regulation 401 and the FY26 manual, please provide:
1. All as built floor plans submitted to ABHA Architects since FY2017 for all impacted schools.
2. All updated drawings or facility assessment updates used to calculate capacity.
3. Any ABHA correspondence regarding changes in school layouts or room classifications.

In response to these two items, the Department provided a cost estimate from ABHA Architects for a total of $2,920.00. This cost estimate includes charges for reviewing file structures, reviewing BIM360 systems, reviewing Outlook correspondence, reviewing collected documents, FTP setup, and file transfers. This Petition followed.

In the Petition, you allege that the Department violated FOIA by improperly denying access to records and improperly assessing fees. You argue that the Department improperly asserted it is not the custodian of these records, but the School Construction Technical Assistance Manual requires the school districts to submit electronic as built drawings to ABHA Architects and the Department uses this database for statutory and operational purposes including capacity calculations and other purposes. You assert that "[c]harging $2,920 for retrieval of existing digital records that DDOE routinely accesses for official purposes is unreasonable and constitutes a constructive denial of access." You assert the estimate includes nonrecoverable fees. Finally, you contend that conditioning access on full payment of the contractor fee in advance violates FOIA.

The Department, through its legal counsel, replied to the Petition and enclosed the affidavit of the Department's FOIA coordinator. ("Response"). The FOIA coordinator attests to the Department's Education Associate having access to some of the requested information from the database that is in the custody of ABHA Architects, but the Department "cannot fulfill [your] request with reasonable efforts from the records it can access." Rather, the FOIA coordinator asserts that a search by the Education Associate would take twice as long and be limited to the most recently uploaded floor plan information.

In its Response, the Department asserts it controls the requested information, but it is located within the BIM360 database, which is in the custody of ABHA Architects. As you asked for records spanning back nearly ten years and the Department could not fulfill this request with reasonable efforts, the Department contends it properly contacted ABHA Architects for retrieving the records under Section 10003(j). The Department argues the provided cost estimate is appropriate, and as the requirement for this cost estimate arises from Section 10003(j) and not 10003(m), it contends that Section 10003(m)'s requirements do not apply to this estimate. The Department asserts it has met Section 10003(j)'s requirement to list all retrieval charges expected to be incurred. The Department states it does not permit waivers for any class of persons, and FOIA expressly allows public bodies to require all or portion of the estimated fees in advance. The Department states that if you decide to proceed with the request, the Department will perform its own review to identify responsive, public documents. The Departments notes that it is likely that the requested materials will contain nonpublic documents, because under Section 10002(o)(17), records of buildings operated by the State "could facilitate the planning of a terrorist attack or put Delaware's school children at risk of a mass casualty event."

DISCUSSION
Delaware's FOIA law "was enacted to ensure governmental accountability by providing Delaware's citizens access to open meetings and meeting records of governmental or public bodies, as well as access to the public records of those entities." FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records. The public body has the burden of proof to justify its denial of access to records. In certain circumstances, a sworn affidavit may be required to meet that burden. As an initial matter, we find that public bodies are permitted to collect the estimated fees in advance.

In this case, the two items at issue in this request seek information about school district buildings that is potentially subject to Section 10002(o)(17). As such information is not subject to disclosure, we recommend that the Department review the potential scope of records in its possession and in ABHA Architects' database to exclude those types of records subject to this exemption and within the timeframes of Section 10003, provide a new cost estimate to you.

CONCLUSION
For the foregoing reasons, we find that a public body may require payment of all the estimated fees in advance, and the Department did not violate FOIA in that regard. Regarding the cost estimate, the Department is recommended to produce a new cost estimate in accordance with above.

Very truly yours,

Daniel Logan
Chief Deputy Attorney General

cc: Carla A.K. Jarosz, Deputy Attorney General; Dorey L. Cole, Deputy Attorney General